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THE ROLE OF THE CONSTITUTIONAL COURT IN THE CONSTITUTIONAL CONTROL OF LEGISLATION ——o— ISTVÁN STUMPF" DEFINITION OF INVALIDITY UNDER PUBLIC LAW, THE CASE-LAW OF THE CONSTITUTIONAL COURT In a constitutional democracy, it is a basic requirement that in the legislative procedure only by respecting the rules of the legislative process can valid law be created. The norm created in an unconstitutional procedure is “invalid under public law”. With regard to the invalidity under public law, the Constitutional Court has established in several decisions that the procedural guarantees of legislation stem from the principles of the rule of law and legal certainty, thus valid legislation can only be enacted by observing the rules of the formalized procedure. Invalidity under public law can be established on several grounds. The law has to be created by a competent organ, the legislative organ shall not go beyond the limits of its authorization, it shall create a legislative norm that is at the appropriate level in the hierarchy of norms,’ it shall comply with the rules of the legislative procedure and, finally, it shall promulgate the law adequately. Prior to the entry into force of the Fundamental Law , the Constitutional Court summarized its position on the invalidity under public law in the Decision No. 164/2011. (XII. 20.) on the constitutional review of the revised first Church Act? (Constitutional Court Decision 1). According to its well-established case-law, the Constitutional Court is authorized to examine the observance of the guarantee rules of the legislative process and, thus, to annul a law adopted in a seriously formally erroneous legislative procedure on the grounds of invalidity under public law. The Constitutional Court has already stated in its Decision No. 11/1992. (III. 5.) that: “Procedural guarantees stem from the principles of the rule of law and legal certainty. (...) Valid legislation can only be enacted by observing the rules ! University Professor, researcher, Széchenyi Istvan University, Győr, National University of Public Service, Budapest, Hungary ? See the wording of Decision No. 29/1997. (IV. 29.) of the Constitutional Court, Decisions of the Constitutional Court 1997, 122. A law being invalid under public law corresponds to procedural unconstitutionality. 3 See Article I (3) of the Fundamental Law: “The rules relating to fundamental rights and obligations shall be laid down in an act of Parliament.” Act C of 2011on the Right to Freedom of Conscience and Religion, and on the Legal Status of Churches, Religious Denominations and Religious Communities. + 420 +
